Senate Bill 704 — Careful Aim But Narrow Miss

On May 4th the N.C. legislature passed Senate Bill 704 (Session Law 2020-3) to address a broad array of problems created by COVID-19.

Bill section 4.31(a) amended the Emergency Management Act to add new section 166A-19-24 to authorize local governments to conduct remote meetings during declarations of emergency.

Although the detailed procedural requirements create traps that could invalidate important decisions by an unwary board, the needed result for my clients is protection against lawsuits challenging virtual hearing zoning approvals in multiple jurisdictions.

Unfortunately, in its effort to hit the target, the General Assembly missed at least twice, and each errant shot might have winged some innocent bystanders.

First, Section 4.31(e) allows public hearings to occur remotely “provided the public body allows for written comments on the subject of the public hearing” up to 24 hours after the close of the hearing.

What?! Or maybe the better question is “WHY!?!”

Applicants and property owners (not to mention local governments) need to know when decisions are final. Does the 24-hour rule mean the local government must vote again if a comment has been received? When does annexation (and taxation) begin? From what date does a statute of limitation run? Do local rules on rebuttal arguments grant applicants yet another round of comments?

A citizen’s right to participate in a public decision should carry an equal obligation to participate within the timeframe provided. Whoever was assisting the legislature draft this provision should have realized there were too many negative consequences to the new and poorly defined 24-hour rule.

The second problematic provision is more subtle but worth noting. Section 4.31(f) allows quasi-judicial proceedings to be conducted remotely only if certain constitutional protections are in place. So far, so good.

However, subsection 4.31(f)(2) allows a quasi-judicial proceeding to occur only if all persons “who have standing to participate” have been given notice and consent to the remote meeting.

The problem is that, except for the property owner and the applicant, it is not known who has standing to participate until they appear at the hearing first and provide evidence to support their standing claim. Simply owning adjacent property does not create standing, a fact established by statute and case law.

Thus, a board would have to issue public notice and open the meeting first on a tentative basis to determine who among all participants and attendees has standing, and then post-pone the hearing if only one neighbor is found to have standing and objects – whether or not that neighbor ultimately intends to participate in the hearing.

I live my life in quasi-judicial hearings. Because I represent so many hard-to-permit industries, most applications have some degree of opposition. Rather than hand neighbors a weapon for defense, the legislature handed them a weapon for offense, a legislative ploy to hold an applicant at bay indefinitely while a declaration of emergency applies.

I’m hopeful that these provisions can be amended when the 2021 long session convenes.

Please feel free to forward to others who may be interested. Click on topics of interest to read past blog posts. To receive future posts, add you email to the “subscribe” list. And stay tuned for the next post on new recent cases handed down by the N.C. Court of Appeals and the N.C. Supreme Court.

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